Citation Nr: 1311166 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 10-46 738 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to educational assistance allowance at an increased rate, otherwise known as a "kicker," under 38 U.S.C. Chapter 33. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from September 1984 to September 2007. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from an adverse determination entered in February 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in St, Louis, Missouri, denying entitlement of the Veteran to a "kicker," i.e., an increased rate of educational assistance, in connection with his receipt of educational benefits under Chapter 33 (Post 9/11 GI Bill) for the school term beginning in January 2010. Pursuant to his request, the Veteran was afforded a videoconference hearing before the Board in March 2011, a transcript of which is of record. No additional documentary evidence was received into the record at the time of such hearing. The appeal is REMANDED to the RO via the VA's Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran contends that he is entitled to a "kicker" for pursuit of a program of education under Chapter 33, based on his entitlement thereto under prior programs of education he pursued with VA assistance under Chapters 32 and 30. He alleges that when he made the choices to leave his Chapter 32 and 30 programs, he was advised that the kicker to which he was entitled under his enlistment contract was fully transferable to each successive program under Chapters 30 and 33. The Secretary of the military department concerned, pursuant to regulations prescribed by the Secretary of Defense, may increase the amount of educational assistance payable under 38 C.F.R. § 21.9640(b)(1)(ii) or (b)(2)(ii) to an individual who has a skill or specialty in which there is a critical shortage of personnel, for which there is difficulty recruiting, or, in the case of critical units, for which there is difficulty in retaining personnel. 38 C.F.R. § 21.9525(a) (2012). If an individual is eligible for educational assistance under 38 U.S.C. Chapter 33 by reason of an irrevocable election to relinquish eligibility under 38 U.S.C. Chapter 30 in accordance with the provisions of 38 C.F.R. § 21.9520(c) and, on the date of such election, the individual is also entitled to an increase ("kicker') of the amount of educational assistance under 38 U.S.C. 3015(d), the individual remains entitled to that increase under 38 U.S.C. Chapter 33. 38 C.F.R. § 21.9650(b) (2012). Here, the Veteran indicates that he was paid a kicker under Chapter 30 and, in addition, he was also paid a kicker in lump-sum for one period of enrollment occurring in later portion of 2009 under Chapter 33. The RO has denied this claim on the basis that the Veteran was never entitled to a Chapter 30 kicker, with attribution of that reported fact to information furnished by the Department of Defense (DoD). However, DoD data are conflicting, with two entries in March 2009 indicating that under Chapter 30 there was entitlement to a basic kicker of $400 monthly and, alternatively, $0, with an October 2007 entry indicating basic kicker entitlement under Chapter 30 being $0. The Board cannot discern from the assembled data whether DoD has in fact certified that the Veteran had no entitlement under Chapter 30 to a kicker. On the basis of the foregoing, this case is REMANDED for the following actions: 1. Request that the DoD or service department confirm in writing through direct communication, as opposed to graphical or screen shot data, whether the Veteran was entitled to a kicker during any period in which he was in pursuit of a program of education under Chapters 32, 30, and 33, and, if so, the amount thereof. Specific consideration should be accorded the Veteran's enlistment contract of January 1984 in which he selected the "9-27 U.S. Army College Fund" option, among others. 2. Clarify whether the Veteran was in receipt of VA educational assistance under Chapter 32 and obtain all documentation relating to his receipt of any Chapter 32 benefits and documentation relating to his reported irrevocable election to receive VA educational assistance exclusively under Chapter 30 program and relinquishment of Chapter 32 benefits. 3. Verify the circumstances of the Veteran's change from Chapter 30 to Chapter 33 benefits, to include the date on which the Veteran made an irrevocable election to receive benefits under Chapter 33 by relinquishing eligibility under any other program or programs, including Chapter 30. 4. Conduct an audit of the Veteran's VA educational account regarding his pursuit of programs of education under Chapters 32, 30, and 33, to include what payments for "kickers" were made throughout any pertinent period of enrollment under each of the listed Chapters. 5. Readjudicate the issue on appeal, to include the question presented as to the transferability of a kicker to which the Veteran was entitled under Chapter 32 to Chapter 33, and if the benefit sought on appeal is not granted to the Veteran's satisfaction, issue a supplemental statement of the case and permit the Veteran a reasonable period in which to respond, before returning the case to the Board for further review. No action by the Veteran is needed until he receives further notice. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).